A police decision to retain photographs of two crime suspects who were never charged has been declared a breach of human rights in a landmark High Court ruling.
Two judges ruled as "unlawful" the Metropolitan Police policy on custody photographs, which is based on the home secretary's code of practice on the management of police information and related guidance.
The ruling was won by two applicants referred to as RMC and FJ, who must not be identified for legal reasons.
RMC is a 60-year-woman from Chelsea, who five years ago was arrested on suspicion of assault and had DNA samples, fingerprints and photographs taken.
The Crown Prosecution Service decided not to charge her with assaulting a community support officer who had stopped her riding a cycle on a footpath, but the Metropolitan Police refused the "distressed" woman's request to destroy her records.
In the second case, FJ, a 12-year-old boy from Peckham, was arrested on suspicion of rape of his second cousin after voluntarily attending a police station for questioning in April 2009.
No charges were brought after a third party witness did not confirm an offence had taken place.
During the arrest DNA was taken from FJ, now 15, along with fingerprints and photographs.
The Met refused a request to destroy the material and also retained a record of his arrest and other information on the police national computer (PNC).
Today Lord Justice Richards, sitting at London's High Court with Mr Justice Kenneth Parker, said: "I am not satisfied that the existing (police) policy strikes a fair balance between the competing public and private interests and meets the requirements of proportionality.
"In my judgment, therefore, the retention of the claimants' photographs in application of the existing policy amounts to an unjustified interference with their right to respect for their private life and is in breach of Article 8 (of the human rights convention).
But the judges ruled police retention of FJ's PNC record was justified and only a "small and plainly proportionate" interference with his Article 8 rights.
Allowing the application for judicial review with regard to custody photographs, the judges ordered the Commissioner of Metropolitan Police to pay the legal costs of both RMC and FJ.
Lord Justice Richards said the Commissioner had indicated he did not intend to seek permission to appeal.
But he said home secretary Theresa May wished to consider her position on today's ruling, which has nationwide implications.
The judges gave her two weeks to make any appeal application.
The Equality and Human Rights Commission, which intervened in the test case, said later that the ruling meant the police "cannot keep photographs of people without criminal records or those not found guilty".
The judges had rejected the Met argument that keeping the photographs was necessary for preventing crime and disorder.
Unless the ruling is successfully appealed, the police are likely to have to destroy photographs held "of anyone who is innocent of any crime".
The Commission said the ruling was in keeping with other test cases it had been involved in where the courts also decided that the police could not retain people's DNA and fingerprint data "indiscriminately or indefinitely".
John Wadham, general counsel for the Commission, said: "Without the protection of our human right to a private life, the police would be able to hold on to your DNA, fingerprints and photographs even if you'd done nothing wrong.
"There is no good reason why the police should hold on to information about people who have not committed any crime.
"However, we recognise the importance of retaining the identification of people who have been charged with or convicted of offences.
"But it is essential that the police use these powers appropriately, proportionately and fairly."
In a written judgment, Lord Justice Richards warned that the unlawful policy should be revised "in months, not years".
He said the photos challenge was another in a line of cases dealing with the retention of data by the police "after a person has been arrested on suspicion of an offence but has subsequently not been proceeded against, or has been charged and acquitted".
The judge said the courts had already ruled the indefinite retention of fingerprints and DNA an unjustified interference with the right to respect for private life under the human rights convention.
This had left open the question with regard to photographs of arrested people who fell into the same category.
The home secretary issued a code of practice on the management of police information (the MoPI code) in July 2005.
Guidance to police, including the Met, on how the MoPI should be applied to custody photographs had been produced by the National Policing Improvement Agency on behalf of the Association of Chief Police Officers (Acpo).
The Acpo guidance came into effect in 2006, with a second edition in 2010.
The judge ruled the "just and appropriate order" was to declare the Met's existing policy based on the MoPI code and guidance unlawful.
He added: "It should be clear in the circumstances that a 'reasonable further period' for revising the policy is to be measured in months, not years."